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Blank v. Canada (Minister of Justice), 2006 SCC 39

June 2014

Summary: This case is about a refusal to disclose certain documents on the basis of litigation privilege. The Supreme Court of Canada ordered that the documents be disclosed because the litigation privilege had lapsed. While this appeal was about the Access to Information Act, the Privacy Act treats issues of solicitor-client privilege similarly; therefore, the principles in this decision apply equally to the Privacy Act.

Facts: The Respondent was charged with various crimes in 1995 and 2002. All of the charges were eventually either quashed or stayed. The Respondent then sued the federal government in damages for fraud, conspiracy, perjury and abuse of its prosecutorial power.

In 1997 and 1999, the Respondent requested various documents under the Access to Information Act pertaining to his prosecution. The Department of Justice refused to disclose various records on the grounds of solicitor-client privilege. The Respondent pursued the matter to Federal Court. The Federal Court held that documents subject to litigation privilege could be excluded under the Act, but that documents should be released if the litigation to which the record relates has ended. The majority of the Federal Court of Appeal agreed, but a dissenting judge found that the privilege did not necessarily end with the termination of the litigation that gave rise to it. The Department of Justice appealed.

Result: The Supreme Court of Canada concluded that the records must be disclosed.

Decision: Throughout all levels of court, this case proceeded on the basis that “solicitor-client privilege” under the Act was intended to include litigation privilege. The Court agreed with that presumption. However, the Court made it clear that litigation privilege and solicitor-client privilege are two different concepts.

Solicitor-client privilege applies only to confidential communication between a client and his or her solicitor. It exists any time a client seeks legal advice from his or her solicitor, whether or not litigation is involved. Solicitor-client privilege exists forever: it survives the particular issue on which advice was sought, and even the existence of that particular solicitor-client relationship.

Litigation privilege applies to non-confidential communications, or even material of a non-communicative nature, generated for the dominant purpose of pending or ongoing litigation. It applies only in the context of litigation itself and is geared directly to the process of litigation. It is designed to create a zone or chamber of privacy for litigation. It arises and operates even in the absence of a solicitor-client relationship – i.e. it applies to all litigants, regardless of whether they are represented by counsel. Finally, litigation privilege ends at the conclusion of litigation and all closely related proceedings.

These various principles also apply to the privilege protected by s. 23 of the Access to Information Act. The Access to Information Act is a statutory scheme aimed at promoting the disclosure of information in the government’s possession. Further, s. 23 of the Access to Information Act is permissive: it provides that the head of the government institution may invoke the privilege. These factors support an interpretation that s. 23 does not protect privilege greater than the common law. In other words, litigation privilege is protected by s. 23 of the Access to Information Act, but only to the same extent it is protected by the common law.

In this case, the Court concluded that the litigation giving rise to the privilege – i.e. the prosecution – had expired. The civil claim was not sufficiently related to the prosecution for the litigation privilege to survive.

Principles:

“Solicitor-client privilege” in the Access to Information Act and Privacy Act includes litigation privilege.

Litigation privilege protects all records created for the dominant purpose of anticipated or ongoing litigation.

Litigation privilege ends on the completion of that litigation and all closely related litigation.

The scope of “litigation privilege” under the Access to Information Act and Privacy Act is no larger than the scope of the privilege at common law.